NUMBER 13-18-00540-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

EDINBURG CONSOLIDATED

INDEPENDENT SCHOOL

DISTRICT, Appellant,

v.

CRISTINA L. ESPARZA, Appellee.

 

On appeal from the County Court at Law No. 4

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Perkes

Memorandum Opinion by Justice Benavides

Appellant Edinburg Consolidated Independent School District (ECISD) challenges 

the trial court’s denial of its plea to the jurisdiction on appellee Cristina Esparza’s

employment discrimination suit. See TEX. LAB. CODE ANN. § 21.051. By two issues, 

ECISD argues that the trial court erred by denying its plea to the jurisdiction because 
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Esparza’s administrative claim was filed too late to permit the trial court to exercise 

jurisdiction over her claims, and that ECISD is immune from Esparza’s claim for 

exemplary damages, which Esparza concedes on appeal.1 We affirm.

I. BACKGROUND

Esparza was the principal of one of ECISD’s middle schools in the summer of 

2016. After school was dismissed for the summer, a private photo of Esparza that she 

sent to her husband was widely disseminated on social media within the local community. 

According to Esparza, the photo was not authorized to be publicly disseminated and she 

complained to law enforcement. 

On June 22, 2016, Esparza and the ECISD assistant superintendent had a 

conversation in which Esparza was given the choice of resigning or being fired. Esparza 

received a letter the next day that informed her that her employment was suspended with 

pay while the district investigated. On July 20, 2016, Esparza received another letter 

from ECISD that informed her that she was being reassigned from her principal position 

and would be advised at a later date regarding her employment status. On August 25, 

2016, Esparza received a notice of proposed termination of her employment from the 

ECISD Board of Trustees. 

Esparza filed a complaint with the Texas Workforce Commission (TWC) on 

January 24, 2017 and received a right to sue letter on November 3, 2017. She filed suit 

against ECISD alleging gender discrimination on December 22, 2017. ECISD filed its 

answer and plea to the jurisdiction with exhibits on January 18, 2018. After an 

 

1 Because Esparza has conceded that she may not recover exemplary damages, ECISD’s second 

issue is moot.
3

evidentiary hearing at which Esparza testified and exhibits2 were introduced, the trial 

court denied the plea to the jurisdiction on September 13, 2018. ECISD filed this 

interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.104(a)(8). 

II. PLEA TO THE JURISDICTION

ECISD argues that the trial court erred because Esparza’s filing with TWC was 

untimely. It argues that her filing occurred more than 180 days after June 22, 2016, the 

day Esparza was told she would be fired and thus did not invoke the trial court’s 

jurisdiction. 

A. Standard of Review and Applicable Law

Governmental units, including school districts, are immune from suit unless the 

state consents. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 

2004). The Legislature mandates that all statutory prerequisites to suit are jurisdictional 

in suits against governmental entities. See TEX. GOV’T CODE ANN. § 311.034; Prairie 

View A & M Univ. v. Chatha, 381 S.W.3d 500, 514 (Tex. 2012). Here, it is undisputed 

that compliance with section 21.202 of the labor code is mandatory.

3 See TEX. LAB. CODE 

ANN. § 21.202; Chatha, 381 S.W.3d at 514. Failure to comply with the time limit is a 

jurisdictional bar to suit. Chatha, 381 S.W.3d at 514; Univ. of Tex.-Pan Am. v. De Los 

 

2 Esparza objected to exhibits attached to ECISD’s plea to the jurisdiction from the administrative 

proceedings on the grounds that they were from different litigation. The trial court sustained Esparza’s 

objections in its written order denying the plea to the jurisdiction

. 

3 Section 21.202 states:

(a) A complaint under this subchapter must be filed not later than the 180th day after the 

date the alleged unlawful employment practice occurred.

(b) The commission shall dismiss an untimely complaint.

TEX. LAB. CODE ANN. § 21.202.
4

Santos; 997 S.W.2d 817, 821 (Tex. App.—Corpus Christi–Edinburg 1999, no pet.); see 

also McAllen Indep. Sch. Dist. v. Espinosa, No. 13-11-00563-CV, 2012 WL 3012657, at 

*6 (Tex. App.—Corpus Christi–Edinburg Jun. 15, 2012, no pet.) (mem. op.).

“A jurisdictional plea may challenge the pleadings, the existence of jurisdictional 

facts, or both. When a jurisdictional plea challenges the pleadings, we determine if the 

plaintiff has alleged facts affirmatively demonstrating subject-matter jurisdiction.” Alamo 

Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); Miranda, 133 S.W.3d 

at 227–28. If the plea challenges the existence of jurisdictional facts, we must consider 

evidence when necessary to resolve the jurisdictional issue. Clark, 544 S.W.3d at 770. 

If we consider evidence relating to the plea to the jurisdiction, a plaintiff must raise “at 

least a genuine issue of material fact.” Id. at 771. “[W]e must take as true all evidence 

favorable to the plaintiff, indulging every reasonable inference and resolving any doubts 

in the plaintiff’s favor.” Id.; see also McAllen Indep. Sch. Dist.; 2012 WL 3012657, at *6. 

But “we cannot disregard evidence necessary to show context, and we cannot disregard 

evidence and inferences unfavorable to the plaintiff if reasonable jurors could not.” 

Clark, 544 S.W.3d at 770; see also McAllen Indep. Sch. Dist.; 2012 WL 3012657, at *6. 

Once a defendant challenges the plaintiff’s case with evidence, as here, “the jurisdictional 

inquiry focuses on the evidence and whether the plaintiff can create a fact issue.” Id. at 

785. If the evidence raises a fact issue, the trial court cannot grant the plea to the 

jurisdiction. Miranda, 133 S.W.3d at 228.

B. Accrual of Claim of Discrimination

ECISD argues that the date that triggered Esparza’s claim of gender discrimination 
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was June 22, 2016, the date on which she was given a choice between resigning or her 

employment being terminated based upon Esparza’s conversation with the assistant 

superintendent. ECISD relies on Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 

490, 492 (Tex. 1996) (per curiam) and Tex. Parks & Wildlife Dep’t v. Dearing, 150 S.W.3d 

452, 458 (Tex. App.—Austin 2004, pet. denied).

Esparza disagrees. She argues that neither the superintendent nor the assistant 

superintendent had the authority to terminate her employment on June 22, 2016; that only 

the Board of Trustees could authorize the termination of her contract, and it did not do so 

until August 25, 2016. Esparza cites to § 11.051 of the Texas Education Code to support 

this proposition. TEX. EDUC. CODE ANN. § 11.051.4

1. Education Code

Esparza was employed by ECISD under a term contract that provided that the 

Contract “will terminate if the Board determines any of the following exists: good cause, 

financial exigency, or a program change . . . .” See TEX. EDUC. CODE ANN. § 21.211(a).

Section 11.1513 provides that the Board of Trustees “shall adopt a policy providing 

for the employment and duties of district personnel . . . the superintendent has sole 

authority to make recommendations to the board regarding the selection of all personnel

 

4 Governance of Independent School District; Number of Trustees

(a) An independent school district is governed by a board of trustees who, as a body 

corporate, shall:

(1) oversee the management of the district; and

(2) ensure that the superintendent implements and monitors plans, 

procedures, programs, and systems to achieve appropriate, clearly 

defined, and desired results in the major areas of district operations.

TEX. EDUC. CODE ANN. § 11.051.
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. . . [and] [t]he board of trustees may accept or reject the superintendent’s 

recommendation regarding the selection of district personnel.” Id. § 11.1513 (emphasis 

added). A superintendent is responsible for “initiating the termination or suspension of 

an employee or the nonrenewal of an employee’s term contract.” Id. § 11.201 (emphasis 

added). A superintendent also has the authority to reassign a district employee within 

the limits of the employee’s contract and the education code. See Jenkins v. Crosby 

Indep. Sch. Dist., 537 S.W.3d 142, 155 (Tex. App.—Austin 2017, no pet.). 

2. Charge of Discrimination

Esparza complained that her discharge on August 25, 2016, was the act of 

discrimination. Up until that date, she claims her status was unclear based upon the 

letters she received from ECISD: (1) she was suspended with pay, (2) she was 

reassigned, (3) ECISD was investigating, and (4) the Board of Trustees had not decided 

whether to terminate her employment until August 25, 2016. After they did so, according 

to Esparza, her deadline to file her administrative complaint was February 20, 2017, a 

deadline she met by filing on January 24, 2017.

3. Discussion

In Specialty Retailers, one of the cases on which ECISD relies, DeMoranville 

worked for retailer Palais Royal, Inc. as a vice president. 933 S.W.2d at 491. Her 

company was purchased by another company, merged, and reorganized. Id. After the 

merger, DeMoranville accepted a demotion to a buyer and was assigned to a new 

manager who favored younger workers, continually criticized her work, and asked her to 

work long hours. Id. DeMoranville began suffering from stress. She took a leave of 
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absence to alleviate what she described as a hostile work environment. Id. at 492. 

While on leave, she was replaced as a buyer and was told that if her leave lasted longer 

than a year, company policy would terminate her employment. Id. DeMoranville did not 

return and was fired on May 1, 1992. Id. She filed a complaint of discrimination on June 

2, 1992. Id.

The Specialty Retailer Court held that DeMoranville’s complaint was untimely. Id. 

“Even if the termination of DeMoranville’s employment in 1992 could be considered a 

discriminatory act, her complaint is nevertheless untimely because she was notified on 

May 10, 1991, that she would be terminated if she did not return to work within one year 

of the start of her medical leave.” Id. at 493. Limitations begin when the employee 

learns of the allegedly discriminatory employment decision, not when that decision comes 

to fruition. Id. DeMoranville did not file a claim with the EEOC within 180 days after 

May 10, 1991, the date on which she was told she would be terminated. Id. 

Dearing, another case on which ECISD relies, analyzed things somewhat 

differently. 150 S.W.3d at 452. In that case, Texas Parks & Wildlife was given authority 

by the legislature to reclassify some of its game wardens. Id. at 456. Authorization took 

place during the legislative session to become effective on September 1, 1999. Id. The 

reclassification was discussed at a mandatory meeting on August 10, 1999. Id. at 458. 

The appeals court held that the clock on Dearing’s complaint began to run from 

September 1, 1999, because there was no evidence that he knew of the change at any 

earlier time and because the workforce commission treated his administrative complaint 

as timely. Id.
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The difference between Esparza’s case and Specialty Retailer is significant. The 

provisions of the education code and the terms of Esparza’s contract appear to grant to 

the ECISD Board of Trustees the power to terminate her contract, not the superintendent 

who has the statutory authority to initiate discussions of termination. See TEX. EDUC.

CODE. ANN. § 11.1513. Moreover, placing Esparza on administrative leave with pay and 

full benefits is does not constitute the kind of adverse employment decision required to 

constitute an act of discrimination. Instead, an adverse employment action requires a 

significant change in employment status. See Esparza v. Univ. of Tex. at El Paso, 471 

S.W.3d 903, 909 (Tex. App.—El Paso 2015, no pet.). Events such as disciplinary filings, 

supervisor's reprimands, poor performance reviews, negative employment evaluations, 

verbal threats to fire, reprimands, and criticism of the employee’s work do not constitute 

actionable adverse employment decisions. Esparza, 471 S.W.3d at 909. However,

although some job transfers can qualify as adverse employment actions, if there is 

evidence that the new position is much less desirable, Esparza’s reassignment was never 

finalized. See Scott v. Godwin, 147 S.W.3d 609, 617 (Tex. App.—Corpus Christi–

Edinburg 2004, pet. dism’d). 

As a result, the fact question created by Esparza’s contract and the education code 

provisions, and the ambiguity created by ECISD’s correspondence at least raise a fact 

question on the date Esparza’s discrimination case accrued. Only if Esparza’s 

discrimination claim accrued in June is ECISD entitled to dismissal. Because there is a 

fact question, the trial court may not grant the plea to the jurisdiction. Miranda, 133 

S.W.3d at 228. In addition, the Dearing Court found it significant that the administrative 
9

agency treated Dearing’s discrimination complaint as timely. The same holds true for 

Esparza. Accordingly, we overrule ECISD’s first issue. 

III. CONCLUSION

We affirm the trial court’s order denying the plea to the jurisdiction. 

GINA M. BENAVIDES,

Justice

Delivered and filed the

22nd day of August, 2019.